Articles Posted in Paternity

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cashPursuing a family law case can be expensive. Attorneys’ fees and costs can be very costly. Sometimes, the fear of the cost of pursuing your legal claims may work as a barrier to filing. Concern about costs should not make you surrender your legal rights. In certain cases, the law may allow you to obtain a court order that requires your opponent to pay your attorneys’ fees and costs. Having representation from an experienced Florida family law attorney can help you ensure that you are protecting your rights and availing yourself of all possible options.

On the issue of attorneys’ fees, the Fifth District Court of Appeal, whose decisions affect cases originating in Orange County (Orlando), Marion County (Ocala), and Volusia County (Daytona Beach), among others, made an important ruling with regard to attorneys’ fees earlier this month. The case that triggered the ruling was a paternity action filed in Brevard County. Eventually, that case went before the Fifth DCA.

The mother, as part of her appeals case, asked the court to grant her an award of her appellate attorneys’ fees under Section 742.045 of the Florida Statutes. The mother acknowledged that a previous Fifth DCA ruling from 1999, Starkey v. Linn, specifically stated that parties can’t recover appellate attorneys’ fees in paternity cases, but she argued that the 1999 case was wrongly decided and that the court should award her fees in spite of that ruling.

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hourglassIn any family law case, it is important to keep your case moving forward. Depending on the details of your case, a failure to take action within a specific period of time can have disastrous consequences. As a respondent, it can result in a default judgment against you in which the other side gets exactly what they want. As a petitioner, it could mean that your case gets dismissed on procedural grounds, regardless of the merit of your claim. However, sometimes, a court may conclude that you’ve not acted within the allotted time when, in fact, you have. What do you do then? It is in these and other times when it pays to have experienced Florida paternity counsel handling your case.

An example of this type of scenario, and a party’s successful handling of this challenge, was a paternity action filed by a man named José. While many people may think of paternity actions as cases brought by mothers seeking court orders declaring certain men to be legal fathers of their children (and, as a result, obligated by law to provide support for those children), there are actually several reasons why a man might choose to file a paternity case. For example, a man may know or believe that he is the biological father of a child whose mother is not his wife. In a case in which the mother and father aren’t married, the father may file a paternity case to obtain a court order that declares him the legal father, which triggers all of the parental rights established under Florida law.

Apparently, a period of inactivity occurred in José’s case because, on Jan. 25, 2017, the trial court or court clerk dismissed José’s lawsuit “for lack of prosecution.” The term “lack of prosecution,” in a civil lawsuit, means that the plaintiff took no action for a certain prolonged period, and, because of that inactivity, the court was entitled to throw out the case. Florida’s family law procedural rules state that, if a plaintiff in a family law case does nothing for 10 months, the court can serve notice that the case is at risk of dismissal. If another 60 days goes by after the notice with still no activity in the case, the case can be dismissed.

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father and sonNot everyone’s family is destined to look like a “traditional family” from a 1950s “sit-com.” Some fathers will find themselves in the position of having children with women who are not their wives. These fathers may, like any other fathers, still desire a close relationship with their children. The level of complexity of Florida paternity cases may vary, depending on the circumstances, but all can benefit from the input of knowledgeable Florida family law counsel. One situation that can add extra layers of complexity occurs when the mother of your child is still married to someone else at the time of your child’s birth. A recent case from Broward County outlines some of the legal rights alleged fathers have in these situations.

In the case, a woman (“T.S.”) gave birth to a child in February 2013. The mother did not provide paternal information in the child’s birth certificate but did give the child a last name that did not match hers or her husband’s. Eventually, DNA tests showed that “C.P.,” the man whose last name matched the child’s, was the child’s father.

Two years later, the biological father filed a court action seeking a determination of paternity and child support, among other things. The mother argued that the trial court should throw the case out. Her argument stated that, when she gave birth to the child, she was married to another man (“S.F.”). This meant that the child was the product of an intact marriage and was presumed to be the legal child of S.F., and C.P. had no legal right to bring a court action for paternity.

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DNA testingOne of the more “buzzworthy” and headline-grabbing family law cases of recent days came from Texas, where a court in that state recently ordered a man to pay $65,000 in child support for a 16-year-old girl despite unrefuted scientific proof (in the form of DNA testing) that the girl was not the man’s biological daughter. The case touches upon many issues related to the methods for establishing legal paternity and the role DNA testing should play in that process. A South Florida case from last year touched upon many of those same issues. That case, involving two men, a mother, and her young daughter, shed some light on Florida paternity procedures.

The Palm Beach County mother, A.D.A., was involved romantically with a man, M.J.L., until late 2009. When those two broke up, A.D.A. was “in trouble with the law” and also was in the late stages of a pregnancy. Shortly before Christmas, A.D.A. had a baby daughter. Also present at the hospital was M.J.L. and a new man in the mother’s life, D.M.F.

The daughter’s birth certificate listed no father. M.J.L. filed a paternity action early in 2010 but voluntarily dismissed his case in the following summer. Shortly after that dismissal, in late July 2010, A.D.A. and D.M.F. filed an Acknowledgement of Paternity, stating that D.M.F. was the natural father. In reality, D.M.F. couldn’t have been the biological father, since he did not enter the mother’s life until well after the March 2009 date when she conceived the child.

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DNAIf you are familiar with daytime talk TV shows, or maybe just pop culture in general, perhaps you’ve witnessed the scene. The baritone-voiced talk show host, with all the appropriate dramatic pauses, tells the man sitting on stage the results of a DNA paternity test. “You are… not the father,” the host exclaims. The man dances. The woman cries. YouTube users compile the scenarios for “Best of” and “Top 5” videos. These issues also occur outside daytime TV, and they are very serious matters. Many real lives may be dramatically altered by the outcomes of these procedures. So, what happens if you think you may need to disestablish legal paternity of a child in Florida? A recent case decided by the First District Court of Appeal, in resolving the case of one man, highlights some options available under this state’s law.

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Happy_child_finds_joy.jpgIn television’s daytime soap operas, familial relationship dynamics can be complex, and tracing one’s family tree sometimes is… challenging. In the real world, when your child is the product of a non-traditional situation, this can sometimes greatly heighten the hurdles you face when it comes to obtaining and exercising your rights to be a part of your child’s life. One father recently obtained some good news when the 4th District Court of Appeal reinstated his paternity order, ruling that the child’s mother could not contest that order based upon her having been married to another man at the time of the child’s birth.

The case revolved around the paternity of C.M.D., a child born to Ruby Kane. Kane, at the time of C.M.D.’s birth, was known as Ruby Struber and was married to Christopher Struber. C.M.D.’s biological father, however, was Jordan Drouin.
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Birth certificate.gifIn unfortunately too many cases, a child grows up “fatherless” because his or her father fails to assume his parental responsibilities or because the child’s mother does not know who the father is. But what about cases where multiple men have stepped up to claim fatherhood?

This was the issue presented to one Florida appeals court earlier this year when a married woman gave birth to a child conceived as a result of her extramarital affair. Even though everyone involved agreed that the wife’s extramarital partner was the child’s biological father, this ultimately did not matter. In cases where a child is born to a woman who is part of an intact marriage, biological paternity was “legally insignificant” to the determination of legal paternity, according to the 2d District Court of Appeal‘s ruling.
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father-and-son-1205795-m.jpgFather’s rights and paternity issues are hotly contested in Florida as in other jurisdictions. More weight is placed, in some cases, on Florida’s statutory definitions of family than on DNA tests, making it critical to get the help of an experienced Florida attorney.

In a recent case, a mother had given birth to a child in 2004 while married. The child was not born out wedlock and lived with his mother’s parents from birth. The parental rights of the mother’s husband were never terminated and he had an obligation to support the child. The mother died when the child was four. Her mother (the child’s grandmother) filed a petition for temporary custody. The mother’s husband gave written consent. The trial court awarded her temporary custody.

Meanwhile, another man filed a petition for determination of paternity in the same court. He did not meet the definitions of “parent” under Florida’s statutes, but he claimed DNA testing showed him to be the biological father of the child.
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In January 2013, Miami-Dade County Judge Antonio Marin allowed an agreement between three people, permitting all three names be recorded on their daughter’s birth certificate as legitimate legally recognized parents.

1402625_hands.jpgTwo of the people, a lesbian couple, met the third, a gay male hairstylist, in 2006 by patronizing his salon. The business relationship evolved to a true friendship between the three and after a few discussions over 2008-2009, the man agreed to help the couple conceive a child. In 2010, the three initiated an insemination process that was soon successful. The man and one of the women became biological parents of the couple’s baby. According to the man, an agreement that he would be the “father” and would be able to see the child whenever he wished was made orally before the conception. The man claimed he couldn’t foresee the potential paperwork mess that might occur with three possible parents.

After the conception, the man had been approached by the couple and asked to sign an agreement stating that he was just a sperm-donor but never put anything in writing. The women’s attorney stated “When push came to shove, they figured he would understand the situation” and called their failure to have it in writing a “mistake”. The man then knew he needed to seek legal representation as his expectation of a, although somewhat nontraditional, family was in jeopardy. With the advice of legal counsel, the man initiated a paternity suit. A paternity action in Florida is filed in order to assist a parent in protecting vital parental rights such as visitation, custody, and financial support. Simply because someone is a biological father does not necessarily lead to him to be recognized as the father in a paternity suit.

The up-hill battle involved two years of litigation in a Florida courtroom; but to the man, this was his family, his future, and paramount interest. In Florida, true sperm donors lack any sort of parental rights. However, what the couple argued was that this was not a case of a sperm donor but rather a man participating only under the idea he was creating a family because of an agreement between the parties. The couple agree that the man is a valued and important part of the child’s life but according to their understanding of the oral agreement, they expected to have exclusive parental rights.

In addition to allowing the man on the birth certificate, Judge Marin also granted weekly visits for the new father. Since January the man has reported he is actually seeing the child more often, and he and the couple have put legal battle behind them. Seeing that all parties had the child’s best interest as their first priority, the Judge was happy to ensure that all three loving parents got the legal recognition they deserve.
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Oftentimes, the U.S. Supreme Court determines the future of major corporations and interest groups, but occasionally it will decide the fate of child and two separate families. However, on January 4, 2013, the Supreme Court decided to hear the case of ‘Baby Veronica’. In this case, Veronica’s future is at stake between her adopting parents and her Native American biological father.
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The baby Veronica case hinges on the applicability of the Indian Child Welfare Act of 1978 (ICWA). Before the 1970’s, there was no substantial federal statute to safeguard the rights of a Native American child adopted out of their tribe. Many children were adopted, with or without consent, out of their tribes to non-Native families. The ICWA was signed to balance the interests of adopting parents against tribal rights.

Baby Veronica was born in September 2009, her biological father is a member of the Cherokee Nation. Her legal parents lived in South Carolina, knew the biological mother of Veronica and even visited the mother in Oklahoma for the birth. The mother had agreed to the adoption but the biological father fought the adoption. Without any sort of marital bonds between the biological mother and father, typically, this adoption should go on without a hitch.

However, in 2011, the South Carolina Supreme Court ordered the return of Veronica to her birth father based on the ICWA’s preferential treatment of paternal rights. As earlier noted, the ICWA not only intended to safeguard tribes and their future generations from purposeful outsider penetration but also to benefit the interests of children growing up outside their culture. Sociological research repeatedly suggests that cross cultural adoption may often leads to severe identity issues. Adoption related identity issues are heavily correlated to later drug use, alcoholism, jail, even self-harm. These issues are heavily prevalent amongst former adopted Native Americans. Adopting parents must be well aware of the struggle their child may go through, which might be foreign to the parents.

The ICWA obviously only regulates adoption cases involving children from tribal homes, but Florida has other state statutes regulating adoption. The Florida Putative Father Registry is state registry for biological fathers. A man who has heterosexual intercourse with a woman in Florida may file a notarized affidavit in the registry. Before an adoption may proceed, a search will be done into the Putative Father Registry for potential biological fathers who may protest the adoption. The potential father only has a limited time after the intercourse to register if he expects to be able object to a possible adoption.
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